ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00540-2
      INDEX CODE:  107.00
            COUNSEL:  Mr. Eugene R. Fidell

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests  he  be  awarded
the Legion of Merit (LOM) award.

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STATEMENT OF FACTS:

The applicant was relieved from his  Reserve  assignment  effective  1  July
2002 and transferred to the Retired Reserve  Section  awaiting  pay  in  the
grade  of  Colonel.   He  was  credited  with  30  years  and  29  days   of
satisfactory Federal service.  Based  on  his  date  of  birth  he  will  be
eligible to receive retired pay on 11 June 2010.

The applicant previously submitted a request to be  awarded  the  Legion  of
Merit (LOM) award.  On 23 June 2004,  Air  Force  Board  for  Correction  of
Military Records (AFBCMR) considered and denied the applicant’s  request  to
be awarded the LOM.  For  an  accounting  of  the  facts  and  circumstances
surrounding the applicant's request,  and  the  rationale  for  the  earlier
decision by the Board, see the Record of Proceedings, with  attachments,  at
Exhibit H.

On  24  August  2004,  the  applicant’s  counsel  submitted  a  request  for
reconsideration, contending that the Board erred in  its  decision  to  deny
the applicant’s request for the LOM (Exhibit I).

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AIR FORCE EVALUATION:

HQ USAF/REP states there were no violations of the  provisions  of  AFI  36-
2803, Air Force Awards and Decorations Program, in  the  processing  of  the
applicant’s retirement decoration.

REP  notes  the  referenced  instruction  provides   very   basic   guidance
concerning which  decorations  may  be  awarded  upon  the  occasion  of  an
individual’s retirement, and is not intended to be, nor should  it  be  used
as, an all-inclusive “checklist” of minimum requirements  needed  to  “earn”
specific  awards.   REP  affirms  the  decision  authority   regarding   the
appropriate decoration to award an individual remains within  that  person’s
chain of command as it exists at the time of award submission, not the  AFI.
 REP’s complete evaluation is at Exhibit J.

HQ USAF/JAA recommends the Board’s decision be upheld.  JAA states there  is
no evidence to suggest that the Board used an  inappropriate  standard  when
it previously denied the applicant’s request.  They note  the  standard  for
review is whether  the  Board’s  decision  was  arbitrary,  capricious,  and
contrary to law, and state the Board’s previous decision that the  applicant
failed  to  prove  the  existence  of  a  material  error  or  injustice  is
substantiated.  JAA explains AFI 36-2803, paragraph  2.2.6  clearly  states,
“no individual is automatically entitled to an award upon completion  of  an
operational TDY or departure for an assignment.”  JAA notes the  applicant’s
primary argument is that  no  reasonable  person  could  disagree  with  his
contention that his military record warrants receipt of  no  less  than  the
LOM. They opine that this is patently incorrect.

JAA notes the applicant’s commander  signified  in  his  memo  that  he  had
reviewed the applicant’s military records, and, after consultation with  the
applicant’s previous commander, stood by his decision that  the  applicant’s
record did not justify the higher award.  JAA explains the fact  that  other
general officers may have awarded the LOM does  not  by  itself  necessitate
the Board overturning the decision of the  applicant’s  commander;  however,
the crucial point is that determining the appropriate level of award  to  be
given to any member is a matter of discretion.   JAA  remarks  there  is  no
evidence other than complete conjecture on the part of applicant’s  counsel,
that the decision of the applicant’s commander was  based  on  inappropriate
factors.

JAA notes the applicant has  provided  no  evidence  to  attack  his  former
commander’s integrity on  this  issue.   The  applicant’s  former  commander
reiterated that after  the  applicant  submitted  his  AFBCMR  petition,  he
reviewed the applicant’s records  and  determined  than  an  MSM  was  still
appropriate.  JAA opines that the  applicant’s  statement  that  his  former
commander was not impartial or  was  biased  because  the  applicant  was  a
member of the Air Force Reserves is likewise specious at best because  there
is no evidence to make such a conclusion.

JAA states that the applicant’s statement regarding “the Board’s  use  of  a
‘compelling basis’ standard to approve his petition  was  inappropriate  and
therefore should be overturned,” is without merit.  JAA  explains  the  word
“compelling” is defined as “tending to convince or convert by or  as  if  by
forcefulness of evidence.”  This phrase does  not  suggest  that  the  Board
required the applicant to prove his case by a more  exacting  standard  than
required by law; rather it must be viewed in light of the report’s  previous
statement that the  applicant  present  insufficient  relevant  evidence  to
“demonstrate the existence of  error  or  injustice.”   JAA  asserts  it  is
apparent that the Board applied the proper legal standard, and  the  use  of
“compelling evidence” in its report refers to the applicant’s  inability  to
prove the merits of his case.  JAA concludes they do not believe  the  Board
must reconsider the applicant’s petition  based  on  his  latest  assertions
(Exhibit K).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Having  been  provided  the  advisory  opinions,  the  applicant’s   counsel
disagreed with the opinions of the Air  Force  and  reiterates  the  initial
contentions.  Counsel asserted the Board’s  prior  decision  was  arbitrary,
capricious, and contrary to substantial evidence and to the  applicable  law
(Exhibit M).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  After again reviewing this application  and  the  evidence  provided  in
support of the appeal, we remain unpersuaded that the  applicant,  upon  his
retirement, should have been awarded the LOM award versus the MSM award.

2.  It is a well-established principle that regularity is  presumed  in  the
conduct of government officials and the burden for providing  a  showing  of
error or injustice rests with the applicant.   We  have  reviewed  counsel’s
recent submission, and note his allegations in regards to  the  findings  of
the Board’s prior decision; however, we were unable  to  find  any  evidence
indicating that  the  applicant  was  the  recipient  of  unfair  or  unjust
treatment.  Our contention remains that the applicant’s commander  made  the
appropriate decision to award the  applicant  the  MSM;  and  therefore,  we
agree with the opinions and recommendations  of  the  Air  Force  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.

3.  We  have  again  considered  the  applicant’s  request  for  a  personal
appearance and do not find the evidence presented  indicates  that  such  an
appearance would materially add to our understanding of  the  issues  raised
in this case.  Therefore, the request for a hearing is denied.

_________________________________________________________________




THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probably material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 11 May 2005, under the provisions of AFY 36-2603:

            Mr. Thomas S. Markiewicz, Chair
            Ms. Barbara R. Murray, Member
            Ms. Cheryl V. Jacobson, Member

The following documentary  evidence  was  considered  with  AFBCMR  BC-2004-
00540:

      Exhibit H.  Record of Proceedings, dated 14 Jul 2004, with
            Exhibits.
      Exhibit I.  Counsel’s Letter, dated 25 Aug 2004, with    atchs.
      Exhibit J.  HQ USAF/REP Letter, dated 13 Dec 2004.
      Exhibit K   HQ USAF/JAA Letter, dated 10 Jan 2005.
      Exhibit L.  Letter, AFBCMR, dated 18 Jan 2005, with atchs.
      Exhibit M.  Counsel’s Letter, dated 14 Feb 2005.












                  THOMAS S. MARKIEWICZ
                  Chair